1. When reviewing a motion to suppress evidence, this court reviews the factual
underpinnings of a district court's decision for substantial competent evidence and the
ultimate legal conclusion drawn from those facts de novo. The ultimate determination of
the suppression of evidence is a legal question requiring independent appellate review.
The State bears the burden to demonstrate that a challenged search or seizure was lawful.

2. A traffic stop is a seizure under the purview of the Fourth Amendment. Thus, in order to
stop a vehicle, an officer must have articulable facts sufficient to constitute reasonable
suspicion under K.S.A. 22-2402(1) and Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S.
Ct. 1868 (1968). A traffic violation provides an objectively valid reason to effectuate a
traffic stop, even if the stop is pretextual.

3. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence.

4. Generally, a law enforcement officer conducting a routine traffic stop may request a
driver's license and vehicle registration, run a computer check, and issue a citation. When
the driver has produced a valid license and proof that he or she is entitled to operate the
car, the driver must be allowed to proceed on his or her way, without being subject to
further delay by the officer for additional questioning.

5. A driver may be detained after a routine traffic stop if the encounter becomes
consensual.An encounter is not consensual where under the totality of the circumstances a reasonable
person would not feel free to leave.

6. Whether a reasonable person would feel free to leave after a traffic stop is a question of
law. An appellate court applies a mixed question standard of review: whether substantial
competent evidence supports the district court findings, while the legal conclusion is
reviewed de novo.

7. Absent a consensual extension of a traffic stop, further questioning is permissible only if
during the stop the law enforcement officer gains a reasonable and articulable suspicion
that the driver is engaged in illegal activity. Whether such reasonable suspicion exists is a
question of law. An appellate court applies a mixed question standard of review: whether
substantial competent evidence supports the district court findings, while the legal
conclusion is reviewed de novo.

8. In reviewing an officer's belief of reasonable suspicion, an appellate court determines
whether the totality of the circumstances justifies the detention. The court makes its
determination with deference to a trained law enforcement officer's ability to distinguish
between innocent and suspicious circumstances, remembering that reasonable suspicion
represents a minimum level of objective justification which is considerably less than
proof of wrongdoing by a preponderance of the evidence. However, the officer must be
able to articulate more than an inchoate and unparticularized suspicion or hunch of
criminal activity.

9. The State bears the burden of showing that the defendant's consent to search was freely
and voluntarily given. Voluntariness of a consent to search is a question of fact to be
determined from the circumstances.

10. Law enforcement officers who have probable cause to believe there is contraband
inside
an automobile that has been stopped on the road may search it without obtaining a
warrant.

11. A driver's general consent to search his or her vehicle entitles law enforcement to
search
all readily opened containers and compartments within the vehicle.

12. Under the facts of this case, the district court correctly refused to suppress
evidence
seized in a search of defendant's car because: the traffic stop was legal; the stop was
lawfully extended through the existence of reasonable suspicion; defendant gave
voluntary consent to the search; law enforcement did not exceed the scope of defendant's
consent; and law enforcement did not exceed the scope of any consent by impairing the
structural integrity of the car.

Review of the judgment of the Court of Appeals in 34 Kan. App. 2d 795, 124 P.3d 1054
(2005). Appeal
from Geary district court; STEVEN L. HORNBAKER, judge. Judgment of the Court of Appeals
affirming the
district court is affirmed. Judgment of the district court is affirmed. Opinion filed March 16,
2007.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the
cause and Nathan B. Webb, of
the same office, and Brian W. Woolley, legal intern, were with him on the brief for
appellant.

Tony Cruz, assistant county attorney, and Phill Kline, attorney
general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: The district court denied George Moore's motion to suppress and convicted
him of possession of marijuana with the intent to deliver and of failure to affix drug tax stamps.
The Court of Appeals affirmed in State v. Moore, 34 Kan. App. 2d 795, 124 P.3d
1054 (2005).
We granted Moore's petition for review under K.S.A. 20-3018(b).

The sole issue on appeal is whether the motion to suppress should have been granted. We
affirm.

FACTS

On October 16, 2002, Kansas Highway Patrol Lieutenant Richard Jimerson and Junction
City Police Officer James Oehm were parked in the median of I-70 west of Junction City.
Around 3:35 p.m., Jimerson observed a vehicle heading eastbound following a red car closely.
Both of the vehicles were in the right-hand lane. According to Jimerson, the vehicle he observed
was "only about a car length and a half behind this red car." He pulled out to pursue, timing the
distance between the two vehicles at .72 seconds. Jimerson then executed a traffic stop.

After the vehicle pulled over, Jimerson approached the driver from the passenger side in
order to avoid traffic. He informed the driver, later identified as George Moore, that he had
stopped the vehicle because it was following the other car too closely. According to Jimerson,
Moore acknowledged that he was following too closely and apologized. However, Moore denied
this.

Jimerson asked Moore for his driver's license and registration, which he produced. The
vehicle was registered to James Ward. During the exchange, Jimerson noted that Moore appeared
highly nervous. His hands were shaking, and he was breathing deeply; he appeared more nervous
than the regular nervousness Jimerson has observed of drivers during the thousands of traffic
stops he had made in his 15-year career. Jimerson also smelled a "slight odor" of fabric softener,
which he knew from his experience with the highway patrol was often used to conceal the odor
of drugs.

During the stop, Officer Oehm arrived as back-up. Jimerson ran Moore's license through
dispatch, which initially reported the license suspended. Jimerson then asked Oehm to inform
Moore of the suspension. When Oehm did so, Moore reacted with confusion and surprise. When
questioned about his travel plans, Moore stated that he was returning from Las Vegas to his home
in Maryland and a friend had loaned him the car. Moore further stated that he had gone to Las
Vegas for an army airborne reunion.

Dispatch later informed Jimerson that Moore's license was not suspended. He informed
Moore of the error and issued a warning for following too closely. When Jimerson returned
Moore's license and registration, he informed Moore that was "all [he] had for him." Jimerson
observed that Moore remained nervous to the same degree as before.

According to Jimerson, Moore placed his hand on the gearshift as if he was going to drive
away. Moore, however, claimed that he did not attempt to leave because Jimerson was leaning
against the frame of the passenger window. Before Jimerson moved from the side of the vehicle,
he asked Moore if he could ask him some more questions. Moore agreed, and Jimerson asked
whether Moore possessed contraband, such as weapons or drugs. Moore denied possessing
contraband.

Jimerson claimed that when he requested permission to search the car, Moore replied that
he could look wherever he wanted. Moore, however, testified that Jimerson only asked about the
army duffel bag in the backseat, which Moore said contained laundry. Moore offered to show
Jimerson the contents of the bag but claimed that any consent was limited to the bag. Instead of
then searching the bag, Jimerson asked Moore to open the trunk; Moore complied.

After searching the trunk, Jimerson looked underneath the car. He entered the car and
searched the duffel bag, finding no fabric softener sheets inside, but noticing that the fabric
softener smell was much stronger in the backseat area. He then searched both the passenger and
driver sides of the interior. He testified that from his experience, the quarter panel is a common
drug concealment area in this type of car. The quarter panel apparently contained an ashtray area.

The record is unclear whether Jimerson removed the ashtray in the quarter panel or
whether it had been removed prior to his entry into the car. He does not remember, and there is
no testimony indicating that he removed it. Nevertheless, when he looked in the ashtray cavity
area, he noticed a nonfactory hinge on the door quarter panel. He also saw a felt covering; it too
was nonfactory. Jimerson concluded he was confronted with a nonfactory panel. He then pulled
molding from around the door edge and the plastic panel from the door, revealing a vacuum
sealed package wrapped in fabric softener sheets. Inside of the package, Jimerson saw green
vegetation that he believed was marijuana.

Upon Jimerson's discovery, he instructed Oehn to arrest Moore, who was subsequently
charged with possession of marijuana with intent to deliver, in violation of K.S.A. 65-4163(a)(3),
and the failure to affix a drug stamp, in violation of K.S.A. 79-5204(a) and K.S.A. 79-5208. A
later search revealed a total of 55 pounds of marijuana hidden in the vehicle.

Moore filed a motion to suppress the seized items. After hearing testimony and watching
a videotape of the stop, the district court concluded that the search and seizure did not violate
Moore's Fourth Amendment rights. The court convicted Moore of both charges and sentenced
him to 18 months' probation with concurrent underlying prison sentences of 15 months for
possession of marijuana with the intent to deliver and 6 months for failure to affix a tax stamp.

Moore appealed, and a majority panel of our Court of Appeals affirmed, with Judge
Greene dissenting.

Other facts will be supplied as are necessary to the legal analysis.

ANALYSIS

Issue: The evidence was not seized in violation of Moore's Fourth Amendment
rights.

Moore argues that the district court erred in failing to suppress for a number of reasons:
he contends that the traffic stop was illegal; that even if the stop was legal, it was not lawfully
extended because it did not become consensual nor was reasonable suspicion present; that even if
the stop was legally extended, he did not give voluntary consent to the search; that even if he did
give consent to the search, Jimerson exceeded the limited scope of the consent; and that even if
he gave consent to search the entire car, Jimerson exceeded even that scope by impairing the
structural integrity of the car in his door search.

Each reason will be addressed in turn.

Overall standard of review

The Fourth Amendment guarantees "the right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures." Section 15 of the Kansas
Constitution Bill of Rights provides identical protection to the Fourth Amendment. State v.
Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).

When reviewing a motion to suppress evidence, this court reviews the factual
underpinnings of a district court's decision for substantial competent evidence and the ultimate
legal conclusion drawn from those facts de novo. The ultimate determination of the suppression
of evidence is a legal question requiring independent appellate review. State v. Horn,
278 Kan.
24, 30, 91 P.3d 517 (2004). The State bears the burden to demonstrate that a challenged search or
seizure was lawful. Anderson, 281 Kan. at 901.

Legality of the traffic stop

Moore first argues that the traffic stop was illegal. A traffic stop is a seizure under the
purview of the Fourth Amendment. Thus, in order to stop a vehicle, "an officer must have
articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402(1) and
Terry
v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) [Citation omitted.] A traffic
violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is
pretextual. [Citations omitted.]" Anderson, 281 Kan. at 901.

"The flow of traffic was about 68 miles per hour, at milepost 293, where the car
was
stopped. And Mr. Moore's car was .72 seconds behind the car in front of him, which is less, of
course, than 1 second, and, at that speed constituted in the opinion of the officer, a violation of
the
statute, for following too closely. So, therefore, the Court finds that the stop here was legal."

The stop was initiated based upon Jimerson's observation that Moore's car was following
another vehicle too closely on the highway in violation of K.S.A. 8-1523(a). It states: "The driver
of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent,
having due regard for the speed of such vehicles and the traffic upon and the condition of the
highway." Jimerson concluded that Moore was following too closely by (1) calculating that
Moore was traveling less than 1 second behind the other car, and (2) estimating the number of
car lengths between the vehicles in relation to their speed of travel. Moore argues, however, that
because the statute does not explicitly provide for "car length" or "2-second rule" tests, the tests
are not appropriate indicators of a violation of the statute.

As the Court of Appeals majority acknowledged, no Kansas appellate cases have
construed the statute. However, the Tenth Circuit has stated that the statute takes into
consideration four variables: speed, following distance, road conditions, and traffic conditions.
United States v. Vercher, 358 F.3d 1257, 1262 (10th Cir. 2004). In light of these
conditions, the
Vercher court upheld an officer's determination that the defendant was following too
closely
based on the car length test. 358 F.3d at 1261-62. Additionally, the Tenth Circuit has also
concluded that an officer's use of the 2-second rule provided a "'minimum level of objective
justification' required for reasonable suspicion justifying a traffic stop." United States v.
Nichols,
374 F.3d 959, 965 (10th Cir. 2004), vacated and remanded on other grounds 543
U.S. 1113
(2005), conviction reinstated 410 F.3d 1186 (2005).

The Court of Appeals majority acknowledged that Moore disputed Jimerson's version of
the events. Moore testified that he was never closer than 100 feet behind the car in front of him,
and that the red car was not directly in front of him, but was rather in the passing lane. An
appellate court, however, does not reweigh evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39
(2004). The
district court's findings, based upon Jimerson's testimony, are supported by substantial competent
evidence.

Under the rationale of both Vercher and Nichols, we
independently conclude that
Jimerson's use of two different tests provided an objective justification required for reasonable
suspicion justifying the stop of Moore's vehicle.

Extension of the traffic stop

Moore next argues that even if the traffic stop was legal, it was not lawfully extended
because it did not become consensual nor was reasonable suspicion developed during the stop.

In Anderson, this court discussed what an officer may do during a routine
traffic stop:

"A law enforcement officer conducting a routine traffic stop may request a driver's
license and vehicle registration, run a computer check, and issue a citation. When the driver has
produced a valid license and proof that he or she is entitled to operate the car, the driver must be
allowed to proceed on his or her way, without being subject to further delay by the officer for
additional questioning." 281 Kan. at 902.

A driver may be detained after a routine traffic stop, however, if the encounter becomes
consensual. State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). As the
Court of
Appeals majority stated, an encounter is not consensual where a reasonable person would not feel
free to leave. 34 Kan. App. 2d at 801 (citing State v. Reason, 263 Kan. 405, 410, 951
P.2d 538
[1997]). The Reason court also held that the reasonable person test is determined by
looking at
the totality of the circumstances. 263 Kan. at 411. This analysis therefore bears considerable
similarity to the one for determining "custody" during a police interrogation. See State v.
James,
276 Kan. 737, 749, 79 P.3d 169 (2003) (An objective standard is utilized to judge whether
an
interrogation is custodial. The proper analysis examines how a reasonable person in the suspect's
position would have understood the situation. The determination is made based upon a totality of
the circumstances applying the objective standard of a reasonable person.).

Accordingly, like the analysis for custody, we conclude the appellate analysis for whether
a reasonable person would feel free to leave after a traffic stop should consist of two parts: first,
the factual underpinnings of a district court's decision are reviewed under a substantial competent
evidence standard; second, the ultimate legal conclusion drawn from those facts, i.e.,
whether a
reasonable person would feel free to leave, is reviewed under a de novo standard. See
James, 276
Kan. 750-53; see also Harris v. Commonwealth, 266 Va. 28, 32, 581 S.E.2d 206
(2003) (whether
extension of a lawful detention for a traffic infraction is consensual, i.e., whether a
reasonable
person would feel free to leave, is a mixed question of fact and law [citing Ornelas v.
United
States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996)]); United
States v. Smith,
423 F.3d 25, 31 (lst Cir. 2005) (mixed question of fact and law, citing
Ornelas); and State v.
Story, 53 Conn. App. 733, 739, 732 A.2d 785 (1999).

Here, the district court determined that the encounter became consensual:

"Officer Oehm arrived shortly after– within, it seemed to the Court,
virtually minutes of
the stop by Lieutenant Jimerson. The papers, driver's license, etc., were returned to the defendant.
Officer–Lieutenant Jimerson testified the defendant was extremely nervous, which flies
in the
face of testimony that of Officer Oehm, who said the defendant was a little bit nervous, of course,
I believe that's probably a subjective thing by each one of those officers. In any event, he did
show
some nervousness.

. . . .

"According to Lieutenant Jimerson, and his testimony was clear on this, and the
Court
wrote it down, put a check mark by it, the question was asked, Can I search your car? And the
answer, according to Lieutenant Jimerson–I know that this is all disputed by the
defendant -- but
the answer by the defendant was, you can look wherever you want. Period. Now, that's the
testimony I wrote down, specifically by Lieutenant Jimerson.

"Now, this–I understand that the defendant had his hand on the gear shift
and was ready
to put the car in gear to leave around the same time that–that that happened. The
defendant never
put the car, obviously, in drive and did not drive away. And so I suppose there's a question about
whether or not he felt he was free to go.

"Court finds that–under all of the circumstances existing in this case, that
the
defendant–is reasonable for the Court to believe the defendant believed he was free to go.

. . . .

"[T]he Court believes that . . . the defendant knew he was free to leave."

On the other hand, the Court of Appeals majority disagreed that the Jimerson-Moore
encounter became consensual:

"The district court relied on evidence the defendant placed his hand on the
gearshift level
in determining the defendant felt free to go. This evidence, apparently, is the only evidence upon
which the court based its decision the defendant felt unrestrained by the officer. We further note
that, according to Trooper Jimerson, the defendant was told the officer was finished with him at
the time the license and registration were returned.

"In contrast, the record undisputably demonstrates that Trooper Jimerson activated
his
emergency lights to stop the defendant's vehicle. After returning the defendant's license and
registration, the trooper did not move away from the car but immediately asked if the defendant
would answer some questions. During this time, Officer Oehm was standing near the defendant's
vehicle. When two officers are standing next to a stopped vehicle, presumably with the
emergency
lights still activated, no reasonable person would feel free to drive away. See State v.
Morris, 276
Kan. 11, 22-23, 72 P.3d 570 (2003) (discussing a string of cases dealing with the use of
emergency lights as a show of authority). Under the circumstances presented in this record, the
further detention of the defendant cannot be deemed consensual." 34 Kan. App. 2d at 802.

The majority assumes that Jimerson's lights were activated throughout much of the stop.
The videotape does not support this assumption. The tape does disclose, however, that Jimerson
is a large, physically imposing individual. It also discloses that for some time after returning the
license and registration and after telling Moore that is "all I have for you," he remained with his
face at the passenger-side window, apparently alternating between leaning on and nearly touching
the frame. The videotape, and Jimerson's testimony, establish that Oehm, also armed, was close
behind him. See Anderson, 114 F.3d 1064 (presence of more than one officer may
indicate
coercive authority). It was during this time that Jimerson asked Moore if he would answer some
questions. Based upon these facts, we independently conclude that a reasonable person would not
feel free to leave. We agree with the majority that the district court erred in holding the detention
was consensual.

Absent a consensual extension of the stop, further questioning is permissible only if
during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is
engaged in illegal activity. See DeMarco, 263 Kan. at 734. As mentioned, our review
of
reasonable suspicion is a mixed question of fact and law.

In DeMarco, this court discussed additional considerations for how
"reasonable
suspicion" is evaluated:

"'What is reasonable is based on the totality of the circumstances and is viewed in terms
as
understood by those versed in the field of law enforcement. [Quoting State v. Toney,
253 Kan.
651, 656 (1993)]. . . .

'[W]e judge the officer's conduct in light of common sense and ordinary human
experience.
[Citation omitted.] "Our task . . . is not to pigeonhole each purported fact as either consistent
with
innocent travel or manifestly suspicious," [citation omitted], but to determine whether the totality
of the circumstances justify the detention. [Citation omitted.] We make our determination with
deference to a trained law enforcement officer's ability to distinguish between innocent and
suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a
"minimum level of objective justification" which is "considerably less than proof of wrongdoing
by a preponderance of the evidence."'" 263 Kan. at 734-35 (quoting United States v.
Mendez, 118
F.3d 1426, 1431 [10th Cir. 1997]; citing UnitedStates v. Sokolow, 490
U.S. 1, 7, 104 L. Ed. 2d 1,
109 S. Ct. 1581 [1989]).

Similarly, the United States Supreme Court has stated:

"While 'reasonable suspicion' is a less demanding standard than probable cause and
requires a
showing considerably less than preponderance of the evidence, the Fourth Amendment requires
at
least a minimal level of objective justification . . . . [Citation omitted.] The officer must be able
to
articulate more than an 'inchoate and unparticularized suspicion or "hunch"' of criminal activity.
[Citation omitted.]" Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120
S. Ct. 673
(2000).

Here, Jimerson testified that he was suspicious of illegal activity based upon: (1) Moore's
severe nervousness; (2) the odor of dryer sheets/fabric softener in the car; (3) Moore's travel route
from Las Vegas to Maryland (4) with little clothing; and (5) the fact the car was not registered to
Moore. His testimony constitutes substantial competent evidence to support the findings made by
the district court, as supplemented by the majority from the record on appeal.

Because the district court found Moore consented to extend the stop, it really did not
address the alternative basis of reasonable suspicion. It did, however, acknowledge the presence
of Moore's nervousness and Jimerson's smell of fabric softener:

"Lieutenant Jimerson testified the defendant was extremely nervous, which flies in the
face of
testimony that Officer Oehm, who said the defendant was a little bit nervous -- of course, I
believe
that's probably a subjective thing by each one of those officers. In any event, he did show some
nervousness.

"Lieutenant Jimerson smelled an odor of fabric softener coming from within the
vehicle
driven by the defendant, and believed because of the indicators and his experience in these
matters
that the defendant may have had illegal narcotics in the car."

In concluding Jimerson possessed a reasonable suspicion to extend the stop, the majority
examined DeMarco, 263 Kan. 727. There, eight factors contributed to an officer's
suspicion that
defendants were transporting drugs: (1) nervousness; (2) cross-country travel from a city known
as a source for drugs; (3) an indirect route of travel; (4) a rental car; (5) a short return time of 3
days for the rental car; (6) travel on I-70, a known drug trafficking route; (7) inconsistent stories
about how the men reached California; and (8) criminal history. 263 Kan. at 735-41.

The DeMarco court discussed the role "nervousness" plays in the reasonable
suspicion
inquiry: "'It is certainly not uncommon for most citizens–whether innocent or
guilty–to exhibit
signs of nervousness when confronted by a law enforcement officer. [Citations omitted.]'" 263
Kan. at 736 (quoting United States v. Wood, 106 F.3d 942, 948 [10th Cir. 1997]).
The court
noted that while nervousness alone is not enough to form reasonable suspicion, when coupled
with other factors, reasonable suspicion may arise. 263 Kan. at 739-41.

The Court of Appeals majority asserted that the factors discussed in DeMarco
are similar
to the factors cited by Jimerson:

"The defendant [Moore] appeared more nervous than typical drivers during a routine
traffic stop.
However, as indicated in DeMarco, Trooper Jimerson had no prior interactions with
this
particular defendant to base his opinion that the defendant's symptoms of nervousness were
indicative of criminal activity. As a result, while this factor can be considered, it is not alone
indicative of criminal activity.

"Here, prior to the termination of the traffic stop, the investigating officers learned
that
the defendant was traveling across the country from Las Vegas to Baltimore. Unlike in
DeMarco,
the route used was a reasonably direct route between those destinations. However, the vehicle
driven by the defendant was not registered to him. These are factors a court may consider in
determining whether an officer possessed reasonable suspicion to justify a longer detention than
required to effect the traffic stop, albeit very weak factors. [Citation omitted.]" 34 Kan. App. 2d
at
804.

After acknowledging similarity to the present case, the majority noted that DeMarco
did
not involve the odor of fabric softener dryer sheets. The majority concluded that the odor of dryer
sheets "represents a significant departure from the facts of DeMarco, as
this factor relates
specifically to a known technique related to drug trafficking." (Emphasis added.) 33 Kan. App.
2d at 804.

As discussed by the majority, other jurisdictions have concluded that the odor of dryer
sheets, even when combined with nervousness, does not give rise to reasonable suspicion. See
State v. Thompson, 256 Ga. App. 188, 190, 569 S.E.2d 254 (2002) ("Although
laundry detergent
and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal
substances that can be used for a legal purpose and thus do not justify the officer's further
detention . . . ."); Rios v. State, 762 N.E.2d 153, 157 (Ind. App. 2002) (seizure and
search of
package was not justified by reasonable suspicion where the sender's mailing address was
California, and the package, which bore an odor of dryer sheets, was sent next-day air;
nevertheless, smell testing by a trained dog was itself sufficient to support probable cause); and
Com. v. Phinn, 761 A.2d 176, 186 (Pa. Super. 2000) (driver's strange behavior and
the odor of
dryer sheets did not support reasonable suspicion); see also Charity v. State, 132 Md.
App. 598,
630-31, 753 A.2d 556 (2000) (odor of a large quantity of air fresheners contributed to officer's
"strong hunch" of drug related activity, but did not raise an articulable suspicion, even when
combined with other factors).

Despite acknowledging the contrary authority, the majority found persuasive reasoning
from the Eighth Circuit, which concluded that an odor of a known masking agent may be
indicative of illegal drug activity. See United States v. Pollington, 98 F.3d 341, 343
(8th Cir.
1996) (driver's nervousness, the odor of laundry detergent known to be commonly used by drug
traffickers to mask smell of narcotics, and the use of a gas-guzzling motor home to drive from
Michigan to Las Vegas for a brief trip justified detention after traffic stop); and United
States v.
Bloomfield, 40 F.3d 910, 918-19 (8th Cir. 1994), cert. denied 514 U.S. 1113
(1995) (driver's
nervousness, possession of a pager, and the strong odor of a masking agent justified detention).
The majority concluded that Pollington and Bloomfield stand for the
proposition that a strong
odor of a masking agent is "highly probative of illegal drug activity." 33 Kan. App. 2d at 805.

The majority also examined another Eighth Circuit case, United States v.
Carrate, 122
F.3d 666 (8th Cir. 1997). There, the court discussed several factors that justified further detention
following a valid traffic stop:

"The troopers testified that the following factors raised their suspicion that Tinoco
[Carrate] may
have been transporting drugs: (1) Tinoco was not the owner of the vehicle, (2) Tinoco was in
route from California to Illinois, (3) California is a point of origin for illegal drugs, (4) Chicago is
a common destination for the shipment of illegal drugs, (5) Tinoco had very little clothing in the
car to suggest a legitimate trip, (6) the six year-old car had high mileage, and (7) Tinoco had a
prior criminal history in California. The experience and training of the troopers had informed
them that the listed factors were consistent with and indicative of drug courier characteristics."
122 F.3d at 669.

Apparently relying on the reasoning of Carrate, the majority upheld Moore's
detention:
"While it may be a close case, we believe that under these circumstances a reasonably prudent
law enforcement officer would have possessed a suspicion the vehicle was being used for drug
trafficking." 34 Kan. App. 2d at 806. Therefore, it concluded that Jimerson was justified in
asking some further questions to investigate his suspicion, and that later Moore's consent
justified the continued detention and search.

Judge Greene dissented from his two colleagues:

"Moore had reasonable and plausible explanations for both his possession of the vehicle
and his
route. Nervousness must be discounted, as recognized by the majority. Accordingly, this case
turns on the impact of the perception by the officer of the odor of fabric softener dryer sheets.

"I respectfully suggest that the Eighth Circuit Court of Appeals' cases relied upon
by the
majority do not reflect the better approach to this problem, nor can they be squared with
controlling authority from our own Kansas Supreme Court [DeMarco]. As noted by
the majority,
most jurisdictions have concluded that the mere odor of dryer sheets, even when coupled with
one
or more mildly suspicious factors, does not support a finding of reasonable suspicion of criminal
activity. . . . [It] is clear that the Eighth Circuit has a far more generous view of such factors than
does our Kansas Supreme Court. Arguably, the factors deemed adequate in Carrate
are
considerably less weighty than those deemed insufficient in DeMarco. Accordingly,
the majority's
reliance on the Eighth Circuit authorities seems misplaced." 34 Kan. App. 2d at 811-12.

As we begin our analysis, we first note that DeMarco, which did not contain
any fabric
softener sheets or any odor possibly indicative of drugs, was a "close" case, and whether the
evidence should have been suppressed, e.g., because no reasonable suspicion
existed, was not an
"easy" question. 263 Kan. at 741.

Second, we observe that a "masking agent," despite having legitimate retail purposes,
may also be used to conceal drugs and certainly may be considered in the reasonable suspicion
calculus. United States v. West, 219 F.3d 1171, 1178-79 (10th Cir. 2000). The
weight assigned to
the odor, however, varies with the circumstances. State v. Malone, 274 Wis. 2d 540,
683 N.W.2d
1 (2004) ("The presence of seven or eight air fresheners in a vehicle occupied by
three young
men with an average age of 21 does not provide probable cause for the search of a vehicle, but it
certainly raises suspicion and justifies reasonable inquiry.").

Third, we also note that the Eighth Circuit's Carrate opinion listed, as a factor
supporting
the court's decision, the small amount of clothes carried by the driver for a trip of such duration.
Similarly, Jimerson testified that was a factor justifying Moore's detention. Like the majority, we
acknowledge that Moore's extreme nervousness and his driving a car not registered to him
cross-country and back are factors, although not necessarily strong ones. However, a car
containing
little clothing during a trip across the country, coupled with the odor of dryer sheets in the car,
increases the possibility of reasonable suspicion. A law enforcement officer could legitimately
question whether a man on a trip from Las Vegas to Maryland would stop along the way to do
laundry with fabric softener sheets, or use the fabric softener sheets in Las Vegas while attending
an army airborne reunion.

Next, we acknowledge the district court's repeated references to Jimerson's capabilities.
The court took judicial notice that Jimerson instructs other law enforcement personnel on drug
interdiction methods. It acknowledged that Jimerson has an "extreme amount of experience in
interdiction of drug offenses" on highways in the State. The court stated that "[t]he court is aware
. . . he knows, or has reason to know, when a person may be involved in drug trafficking or
delivery." It also took notice that Jimerson has been involved as an officer in other appellate
court cases involving vehicle stops and searches.

Jimerson's testimony, coupled with his capabilities, supply a basis for us to conclude that
reasonable suspicion exists to extend the traffic stop. See DeMarco, 263 Kan. at 735
("'[W]e
judge the officer's conduct in light of common sense and ordinary human experience. [Citation
omitted.] . . . . We make our determination with deference to a trained law enforcement officer's
ability to distinguish between innocent and suspicious circumstances, [citation omitted],
remembering that reasonable suspicion represents a "minimum level of objective
justification."'").

We emphasize that because whether reasonable suspicion exists depends upon the totality
of the circumstances, a case-by-case evaluation is required. See DeMarco, 263 Kan.
at 735.
Accordingly, a broad reading of our opinion today is expressly discouraged. We do not advocate
a total, or substantial, deference to law enforcement's opinion concerning the presence of
reasonable suspicion. The officers may possess nothing more than an "inchoate and
unparticularized suspicion" or "hunch" of criminal activity. See Illinois v. Wardlow,
528 U.S.
119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). Such a level of deference would be an
abdication of our role to make a de novo determination of reasonable suspicion. But, in this close
case, we give appropriate deference to the opinions of a particular law enforcement officer on the
scene who, with thousands of traffic stops, is highly experienced in roadside searches and
seizures and determinations of reasonable suspicion.

Consent to search

Moore next argues that even if reasonable suspicion justified a further detention for
questioning, his consent to search during the extended stop was not voluntary. The district court
disagreed, simply finding that consent was properly given and "was knowing, voluntary, and
unequivocal."

The State bears the burden of showing that the defendant's consent to search was freely
and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d
854, 93 S. Ct.
2041 (1973). Unlike our legal conclusions on whether a reasonable person would feel free to
leave after return of Moore's license and registration, voluntariness of a consent to search is a
question of fact to be determined from all the circumstances. Ohio v. Robinette, 519
U.S. 33, 40,
136 L. Ed. 2d 347, 117 S. Ct. 417 (1996) (citing Schneckloth, 412 U.S. at 248-49).
As stated by
the majority, some evidence demonstrated that Jimerson requested Moore's consent to search
while by the passenger-side window. Neither Jimerson nor Officer Oehm drew their weapons.
Moreover, Moore did not testify that he was threatened by the officers nor was his mental
capacity challenged. Based on these facts, the majority reasoned that Moore's consent was a
product of his free will.

An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass
on the credibility of witnesses. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39
(2004). Given
our limited standard of review on this issue, we determine that substantial competent
evidence–as
stated by the majority–supports the district court's factual finding that Moore's consent to
search
was voluntary.

The scope of the consent to search

Moore next argues that even if his consent was voluntarily given, Jimerson's search
exceeded the scope and duration of his consent. He asserts that he only gave Jimerson permission
to search the duffel bag. Nevertheless, he concedes that the scope of his consent was contested,
and that resolution depends "on whom is believed," i.e., a question of fact. We
review findings of
fact for substantial competent evidence supporting them.

The district court found that according to Jimerson,

"the question was asked, 'Can I search your car?' And the answer, according to Lieutenant
Jimerson–and I know that this is all disputed by the defendant, but the answer by the
defendant
was, 'you can look wherever you want.' Period. Now, that's the testimony I wrote down,
specifically, by Lieutenant Jimerson."

It ultimately denied Moore's claim that the search violated the Fourth Amendment, impliedly
holding that consent had been given to search the entire car.

The district court apparently believed Jimerson's testimony over Moore's. The majority of
the Court of Appeals observed that an appellate court does not weigh the evidence or judge the
credibility of witnesses. See Swanigan, 279 Kan. at 23. Accordingly, it "must adopt
the district
court's finding that the scope of the search was not limited by the defendant's consent." 34 Kan.
App. 2d at 806-07.

We agree with the majority. Given our limited standard of review, we determine that
substantial competent evidence–Jimerson's testimony–supports the district court's
finding of an
unlimited scope of Moore's consent.

Scope of consent and purported structural impairment of Moore's car

Finally, Moore argues that even if he had given consent to search the entire car, such
consent did not extend to Jimerson's disassembling the car to look for contraband. In support,
Moore cites People v. Gomez, 5 N.Y.3d 416, 805 N.Y.S.2d 24, 838 N.E.2d 1271
(2005). There,
the police observed fresh undercoating around the gas tank and received the driver's consent to
search his car. One officer went to the rear seat, unlocked it, and pulled it back. He observed gray
"nonfactory" carpet in the location above the area where he earlier had spotted fresh
undercoating. He then pulled up the glued carpeting and found a floorboard cut. He used his
pocketknife to twist open the sheet metal floorboard. When he failed to reach what he believed to
be a plastic bag, he retrieved a crowbar and pried open part of the gas tank. Seven bags of
cocaine were retrieved from the compartment in the gas tank.

The Gomez court concluded that the search exceeded the scope of the
defendant's
consent:

"In the absence of other circumstances indicating that defendant authorized the actions
taken by
police, a general consent to search alone cannot justify a search that impairs the structural
integrity
of a vehicle or that results in the vehicle being returned in a materially different manner than it
was found. . . . Here, the officer clearly crossed the line when he took this action without first
obtaining defendant's specific consent." 5 N.Y.3d at 420.

However, the Gomez court specifically expressed "no opinion as to whether the
search was
otherwise supported by probable cause" because that issue had not been reviewed below. 5
N.Y.3d at 421.

Our Court of Appeals majority determined that Jimerson exceeded the scope of Moore's
consent to search the entire car when he impaired the car's integrity by removing the molding:

"[T]he reasoning of the New York Court of Appeals is persuasive, especially in light of
the dicta
[discussed by the Gomez court] from Jimeno, 500 U.S. 251-52. The
defendant's consent did not
extend to pulling plastic molding away from the quarter panel of the interior of the defendant's
vehicle, even if the molding was hinged to form a compartment." 34 Kan. App. 2d at 807-08.

It then proceeded to hold that despite Jimerson exceeding the scope of Moore's consent
by pulling the molding loose, the resultant search was justified because of probable cause
developed during the part of the search to which Moore had consented.

In our view, a Gomez-based analysis is unnecessary under our facts because
Jimerson's
removal of the molding occurred only after probable cause had developed, entitling him to
expand his search. See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir.
1997) (citing
Florida v. Meyers, 466 U.S. 380, 381, 80 L. Ed. 2d 381, 104 S. Ct. 1852 [1984])
("The Supreme
Court has held that 'police officers who have probable cause to believe there is contraband inside
an automobile that has been stopped on the road may search it without obtaining a warrant.'").

Pursuant to Moore's consent, Jimerson had general authority to search Moore's car; while
within that scope he saw the ashtray. The majority correctly stated that Moore's general consent
to search enabled Jimerson to search all readily opened containers and compartments within the
vehicle, including the ashtray. 34 Kan. App. 2d at 808 (citing Florida v. Jimeno, 500
U.S. 248,
251, 114 L. Ed. 2d 297, 111 S. Ct. 1801 [1991]). It is unknown whether the ashtray had been
removed prior to Jimerson's search, or whether he did it.

When Jimerson looked in the ashtray cavity area, he noticed a nonfactory hinge on the
door quarter panel. He also found a felt covering, which also was nonfactory. He concluded he
was facing a nonfactory panel, which could lead to a hidden compartment. This additional
information contributed to potential probable cause to continue a search. See United States
v.
Mercado, 307 F.3d 1226, 1230 (10th Cir. 2002) ("It is well established that evidence of a
hidden
compartment can contribute to probable cause to search."); see also United States v.
Ledesma,
447 F.3d 1307, 1318 (10th Cir. 2006) ("Because the evidence was highly probative of the
existence of a secret compartment, and because it is difficult to imagine a licit purpose for a large
hidden compartment in a vehicle the size of a Chevy van, these signs of a hidden compartment
strongly suggest–and perhaps even singlehandedly establish–probable cause to
search behind the
side panels in the rear of the van.").

The majority also correctly concluded that the evidence of a hidden compartment,
coupled with the smell of fabric softener sheets (a smell now stronger in the backseat according
to Jimerson's testimony) often associated with masking the odor of drugs, constituted probable
cause. 34 Kan. App. 2d at 808; see also United States v. Arango, 912 F.2d 441, 447
(10th Cir.
1990) (evidence of hidden compartment, along with inadequate amount of luggage for claimed
duration of trip, furnished probable cause). Probable cause allowed Jimerson to extend his
warrantless search. See Anderson, 114 F.3d 1059. Accordingly, probable cause
allowed Jimerson
to pull the molding from around the edge of the door where he observed the fabric
softener-wrapped package of marijuana.

Before this court, Moore now suggests that Jimerson exceeded the scope of Moore's
search consent because, similar to Gomez, Jimerson impaired the car's structural
integrity by
using a knife to pry out the ashtray. He further reasons that because Jimerson would be unable to
see what lay beyond the ashtray while it was in place, Jimerson possessed no additional
information, e.g., the compartment, which could add to his known
information–including the
fabric softener smell–to produce probable cause.

As mentioned, the record on appeal is unclear about how the ashtray came to be removed
and, if by Jimerson, whether he used a knife. Office Oehm testified that he thought "there was
[an ashtray] removed." Jimerson testified that he had a knife in his hand at one point but did not
"remember . . . if I pulled out the ashtray" and "I don't remember if it was already out or if I took
it out." The videotape appears to show an object in his hand, but the camera angle does not show
any use of the object, particularly any prying. Nevertheless, Moore asks us to infer that Jimerson
used his knife to take out the ashtray. If we are unwilling to draw such an inference, in the
alternative he argues that the burden of proof is on the State to prove a legal search. According to
Moore, we therefore should hold that the State did not meet its burden to show Jimerson did
not
use his knife to remove the ashtray and did not impair the car's structural integrity. We
reject
Moore's position.

The judgment of the Court of Appeals affirming the district court is affirmed. The
judgment of the district court is affirmed.